The state of constant excitation and erection in Tom’s dynamic universe is his vision of the sacred and numinous. A theologian might speculate that Tom’s sadomasochistic reverie contains its own punishments, that heaven is always answered by hell. But Tom’s imperial satyriasis is his protest against boredom and ennui, produced by the modern industrial and technocratic withdrawal from nature. Tom cannot be accused of blind idolatry of the liberated body: his pictures show a theater of eyes, a mass voyeurism where consciousness itself has become penetrating and inflamed. And there is a deeply emotional dimension to his variations on the mythic motif of battling and reconciling twin brothers—for Tom’s personae often look like siblings in a wary dance of alienation and attraction.
In masculinizing the gay persona, Tom broke, for good or ill, with the cultural legacy of the brilliant Oscar Wilde, who promoted and flamboyantly embodied the androgynous aesthete. What is durably avant-garde in Tom, now that frank depictions of homosexuality (partly thanks to him) have become so common, is his unsettling treatment of male bonding, a foundational social principle that feminism has foolishly ignored. Tom’s surreal, random encounters show the male gang or team in operation—forming, disintegrating, and regrouping through ruthless realignments and power reversals. This cruel, compulsive pattern enabled men to escape control by women (mothers and wives) and to push history and civilization forward. But the emotional cost may be chronic loneliness, a subliminal melancholy overridden by action, achievement, or mere display. In Tom of Finland’s world of epic quest, with its bruising jousts and fleeting alliances, pugilistic sex becomes the medium through which rogue men regain their lost freedom.
* [From Tom of Finland XXL, collected works, ed. Dian Hanson (Taschen, 2009).]
20
WOMEN AND LAW*
Before Brazil’s Supreme Federal Court in the governmental Plaza of the Three Powers at Brasilia sits an imposing statue of Justice, her eyes blindfolded, her breasts bare, and her hands gently but firmly holding a sword in her lap, as an enthroned medieval Madonna cradles the Christ child. Carved in 1961 from a rugged block of creamy granite from Petrópolis by Alfredo Ceschiatti, the statue invokes the ancient allegorical personification of justice as a Roman goddess, Iustitia. Before her came Dike, the Greek goddess of justice who supervised human laws, just as her mother Themis, holding aloft a scale and brandishing a sword, represented divine law.
This symbolic tradition began in Egypt, where the goddess Ma’at monitored and maintained the physical and moral equilibrium of the universe. The hearts of the Egyptian dead were weighed on a scale, balanced by the “Feather of Ma’at.” The sacred scale also appeared in Babylonian astrology and survives today in the constellation of Libra. Brilliantly, Ceschiatti has combined the sword and scale of Justice, whose feminine shoulders slope into robust arms of Cubist angularity: her strong hands, one facing up and the other down, seem to test the weight of her formidable blade, which represents the power of the state to punish.
The ancient scale of Themis dramatized the systematic and scientific weighing of evidence, the triumph of cool reason over explosive emotion and rigid prejudice. This is the great theme of Aeschylus’ Oresteia, where pitiless female Furies, stormy nature spirits driven by vengeance, yield to the new institutions of civilization, represented by the Athenian court of law on the Areopagus. The warrior goddess Athena, lacking a mother, casts the deciding ballot for the surrender of primordial female power and the triumph of masculine reason, aspiring toward the abstract and impersonal.
Ceschiatti has strangely flattened the head of Justice, as if he is alluding to the bust of Nefertiti, with her conceptually swollen wig-crown, or to the Meso-American Chac Mool, who oversaw with alert eyes the ritual of blood sacrifice, guaranteeing the rise of the sun. Justice is receiving pressure and illumination from above, in a new era led by mind rather than passion. After the chaotic impulsiveness of tribalism and clan warfare, the codification of law brings a higher standard and a system of measured due process. The ceremonial slowness of law makes space for thought.
The iconic blindfold of Justice, signifying the impartiality of the law toward wealth, fame, or power, was not an ancient motif but first appeared in the Northern European Renaissance. A Marxist analysis, with its reflex cynicism, would insist that law is always a product of political and economic exploitation and that law, as inherently oppressive, serves only a ruling elite. But idealism, however sabotaged by untidy reality, is a fundamental human value that separates us from the animal realm.
Today there is a new conundrum facing blindfolded Justice: should gender be visible or invisible to the law? Should women, in pursuing the noble goal of equality, be treated exactly the same as men, or should women be granted special privileges and protections under the law? And if the latter, is the basis for that gender distinction biological or cultural? This argument, which has split feminism, will not be resolved soon.
Despite the majestic deification of Justice, real-life women throughout most of world history were rarely able to exercise the power of law for their own benefit, except if they inherited royal authority from a father or borrowed it from a dead husband. More often, women were the victims of law, rather than its agents. In literature, we see the Antigone of Sophocles persecuted by the draconian Creon; the biblical Mary Magdalene and Hester Prynne in Nathaniel Hawthorne ostracized for adultery; Joan of Arc tried and condemned by male inquisitors; Hedda Gabler in Ibsen prompted to suicide by her claustrophobic entrapment by Judge Brack.
Woman as apostle and practitioner of law, as attorney or judge, is a pioneering modern phenomenon in which Brazil played an early role. Shakespeare, whose admiration of forceful, articulate women may have been partly inspired by the pugnacious Queen Elizabeth I, prefigured this development in The Merchant of Venice, where his resourceful heroine Portia disguises herself as a male law clerk to thwart the cruel contract of the usurer Shylock in court. Not until Hollywood movies, however, would most of the general public be introduced to the decisive persona of the woman lawyer, who has mastered the rules and strategies of what was once an exclusively male game.
In the United States, after women won the right to vote via a constitutional amendment in 1920, there was a surge of women entering the male professions. This was in my view the best and most productive period in feminism—when women openly expressed admiration for male achievement and merely demanded the opportunity to equal or surpass it. Many movies of studio-era classic Hollywood showed high-powered professional women at work, even if the plot-lines often focused on the conflicts faced by a successful woman in reconciling her job with the emotional needs of her husband and marriage—a difficult issue still troubling women today.
Rosalind Russell played a fast-talking newspaper reporter in His Girl Friday (1940) and a judge in Design for Scandal (1941) and Tell It to the Judge (1949). Katharine Hepburn played a famous, multilingual journalist (based on Dorothy Thompson) in Woman of the Year (1942) and a boldly assertive lawyer defending women’s rights in Adam’s Rib (1949), where she battles her husband, an assistant district attorney (Spencer Tracy), in the courtroom. Hepburn’s tremendous authority and crystalline command of rhetoric before the jury (in a script specially written for her by Ruth Gordon and Garson Kanin) remain an inspiring model for women lawyers everywhere.
In the period following World War Two, the victorious but exhausted U.S. reverted to a reactionary culture of domesticity, and movies centered on professional women became much rarer. In Witness for the Prosecution (1957), for example, woman again undermines rather than reinforces the law: taking the witness stand, the disturbingly glamorous Marlene Dietrich is devious and serpentine, another beguiling Eve. It would be a long time before women lawyers returned to the movie screen. In Lipstick (1976), released shortly after the reawakening of feminism in the late 1960s, Anne Bancroft plays a tough prosecutor initiating and leading a criminal trial for the rape of a fashion model (M
argaux Hemingway). In Legal Eagles (1986), a young attorney played by the vivacious Debra Winger clashes with an assistant district attorney (Robert Redford) in the courtroom. In Pedro Almodóvar’s Women on the Verge of a Nervous Breakdown (1988), a film dubber played by Carmen Maura discovers that her lover is about to run away with a rudely unsympathetic feminist lawyer.
However, the most important role for a woman lawyer since Adam’s Rib was certainly that of the assistant district attorney played by Kelly McGillis in The Accused (1988). Jodie Foster won her first Academy Award for Best Actress for playing a rape victim whose case is investigated and prosecuted by McGillis. The movie was based on actual events that had occurred in 1983 in the Portuguese-American community in working-class New Bedford, Massachusetts, once one of the leading whaling ports in the world. A young mother, Cheryl Araujo, was gang-raped by four Portuguese immigrants on a billiards table in a tavern. The subsequent successful trial of the rapists, televised live, was a national spectacle, prefiguring the 1994–95 double-murder trial of famous athlete O. J. Simpson, during which the woman chief prosecutor, Marcia Clark, was catapulted into media stardom.
As they became more common in real life, woman lawyers faded from the movie screen, but they multiplied on television, as in L.A. Law (1986–94), a major hit series about a Los Angeles law firm. In Ally McBeal (1997–2002), Calista Flockhart (who later married Harrison Ford) played a lawyer perpetually perplexed by romantic melodramas. In Sex and the City (1998–2004), a series about professional women in Manhattan that attained worldwide popularity, a sharp-tongued woman lawyer, Miranda Hobbes (Cynthia Nixon), was vexed by the usual problems with intimate relationships with men. Judging Amy (1999–2005) focused on a young woman judge presiding over family court, while in Boston Legal (2004–08), Candice Bergen played an acerbic woman litigator and co-founder of a high-profile Boston law firm.
The status of women under the law has been a long saga of gains, losses, and recoveries. At the dawn of civilization in ancient Mesopotamia, a new urban culture brought a greater sophistication, allowing women to enjoy more rights than they did later. In Sumeria, upper-class women could transact business and sell household slaves. However, adultery was punished by death for women only. After the Babylonian conquest of Sumeria, women under the Code of Hammurabi had fewer rights but could still buy and sell, inherit and bequeath property, and participate in court cases as plaintiff, defendant, or witness, and even serve as judges.
In Egypt, legal rights were principally determined by social class rather than gender. But women of different social levels had equality with men. Egyptian women could own houses and land and could participate in litigation. In Judaea, in contrast, women’s lives were strictly circumscribed by patriarchy, as enforced by religion. Hebrew husbands could be polygamous, while wives had to be monogamous. Wives addressed their husbands as “lord and master,” echoing an honorific used by slaves. A husband could divorce his wife, but not vice versa. Hebrew women could not inherit property, except if there was no living male heir.
In Athens at the height of classical culture, women had no rights of citizenship and were defined by the law only in relationship to a father or husband, who acted as guardian. Nevertheless, a husband could not spend the dowry of his wife, to which she maintained her right. Except for small commercial transactions permitted to working-class entrepreneurs such as vegetable sellers, Athenian women could not enter contracts. Neither could they inherit the crucial possession of land, which went directly to sons or grandsons, bypassing daughters. In the comedy of Aristophanes, Women of the Assembly (391 B.C.), Athenian women masquerading as men take over the government and pass laws to liberate women and establish a communistic paradise of shared wealth and universal social welfare. Strangely, Sparta, the mortal enemy of Athens and a militaristic city-state that created nothing of enduring cultural significance, granted far higher status and visibility to its women, who were renowned throughout Greece as competitive athletes.
During the Republic, the ancient Romans revered law as a fundamental moral principle of the universe. The Twelve Tables, the first code of law in Rome, was also the earliest surviving work of Roman literature. The paterfamilias, a head of family who might be a son after the death of a father, acted as a judge with absolute legal authority and power of life and death over family members, who had no avenue of appeal. The identity of Roman women of the Republic was subsumed in clan: men had three names, while women were known only by a feminized version of their clan name; sisters, like clones, bore the number of their birth order. Roman matrons, remarkable for their force of personality, did have certain property rights, but Roman women were given minimal education and could not hold public office.
Under Christianity, women were tainted daughters of Eve, as defined by the incremental complexities of medieval canon law. Unreliable and inferior beings, women were categorized with children and the mentally defective, and they could not own property or enter into contracts. A Christian husband, exercising the punitive dominion of Adam after the Fall, was the guardian of his wife, whose property automatically became his. Women could not testify in court or act as witnesses.
In Old China, women had no legal rights and could not own land or inherit property. Only concubines enjoyed special privileges. However, mothers-in-law in China have often had near dictatorial power in the home. The Communist Party of China made female emancipation a central principle of modernization. In 1953, the Electoral Law of the People’s Republic of China granted women the right to vote and to hold political office.
In Japan as in China, Confucianism emphasized the group over the individual, a tradition that tended to suppress concern for women’s rights. Japan had a matrilineal system until the militaristic samurai period. Until the reopening of Japan to the West in the nineteenth century, Japanese women had no legal standing and could not own property. World War Two, with its catastrophic destruction of Japanese cities, ended feudalism in Japan. The postwar Allied (and largely American) occupation of Japan introduced a parliamentary system as well as Western-style women’s rights. In 1947, Japan passed a Labor Standards Act that guaranteed equal pay for women—sixteen years before the U.S. passed a similar law.
Feminism as a political movement began in the United States and Britain, which shared a thousand-year tradition of common law, based on custom and judicial precedents (as opposed to civil law, based on legislative statutes, which came to Brazil from Europe). Under common law, a woman lost all property rights upon marriage, and her legal identity was dissolved into that of her husband.
The first manifesto of feminism was published by a British writer who was inspired by the French Revolution: in A Vindication of the Rights of Woman (1792), Mary Wollstonecraft called for women to be granted the vote and to be educated for entrance into the professions. She fiercely protested the crippled legal status of married women, who had no rights even regarding custody of their children. At age 38, Wollstonecraft died from an infection following the birth of her daughter Mary, who would eventually marry the Romantic poet Percy Bysshe Shelley and write the classic novel of Gothic horror, Frankenstein.
Feminism as organized activism emerged from the abolitionist movement among Quakers in England and the United States. It was in Quaker “meetings” (worship services) and anti-slavery societies that women were first permitted and encouraged to engage in public speaking, traditionally regarded as improper and even scandalous for respectable ladies (who should avoid exposure to men’s eyes). There was a strong Quaker presence in the campaign for “woman suffrage” (the right to vote) from Lucretia Mott and Susan B. Anthony to Alice Paul. The first convention for women’s rights, held in the small upstate town of Seneca Falls, New York, in 1848, issued a revolutionary document declaring that “all men and women are created equal” and that any laws opposing such equality are contrary to the great “law of Nature” and therefore have “no validity.”
Later in the ninete
enth century, the American women’s movement became distracted by the Temperance crusade, which pressured the government to ban the manufacture and sale of alcohol. Susan B. Anthony and Elizabeth Cady Stanton were very active in this puritanical campaign, as was Carrie Nation, a tall vigilante who posed for photos with the frightening hatchet that she used to smash beer barrels. The Women’s Christian Temperance Union (1874) and the Anti-Saloon League (1893) eventually succeeded in their goal: in 1919, Prohibition became national law in the U.S. via a constitutional amendment. Fourteen years later, Prohibition was repealed: it had been a total failure that had merely created an underground network for smuggling, laying the foundation for the international drug trafficking of today.
With its authoritarian intrusion into matters of private choice, the Temperance crusade would be paralleled by the acrimonious and sometimes hysterical campaign against pornography in the 1980s by feminists Andrea Dworkin and Catharine MacKinnon, a law professor and the daughter of a longtime judge on the U.S. Court of Appeals in Washington, D.C. Dworkin and MacKinnon wrote an ordinance for city governments that would ban the sale and distribution of pornography, which they arbitrarily defined as a violation of the civil rights of women. Dworkin and MacKinnon wanted to outlaw even mainstream men’s magazines like Playboy and Penthouse. Their ordinance, passed into law by the cities of Minneapolis and Indianapolis, was struck down on appeal by higher courts as a violation of free speech rights, guaranteed under the First Amendment of the U.S. Constitution. However, the ordinance was adopted in Canada, where it complicated and sometimes halted the import of books about sex, ironically including those of Dworkin.
In the 1920s, after women had won the right to vote in the United States and United Kingdom, organized feminism disappeared. When Simone de Beauvoir began writing her epic work, The Second Sex (published in 1949), she was regarded as hopelessly old-fashioned by fellow intellectuals in Paris. De Beauvoir’s deeply researched and philosophical book would have a delayed impact. In 1963, Betty Friedan, a well-educated American magazine writer, published an angry, highly personal book that became a surprise bestseller: The Feminine Mystique expressed the discontents of affluent, middle-class women with their lack of professional opportunities and their imprisonment in the stay-at-home roles of wife and mother.
Provocations Page 17
